Court of Appeal on Article 2 inquests

The Court of Appeal’s ruling in Morahan upholds the decision of the Divisional Court and the Assistant Coroner that the ECHR Article 2 duty was not engaged in Ms Morahan’s case.

The Court determined that the Coroner was right to conclude that Ms Morahan’s circumstances did not give rise to an operational duty upon the NHS Trust under Article 2 to protect her from the risk of accidental death from her use of recreational drugs.

This decision is essential reading for anyone involved in inquests – with reminders to practitioners of the purpose of an inquest:

“An inquest remains an inquisitorial and relatively summary process. It is not a surrogate public inquiry”.

The Court of Appeal in its decision raises concerns that the flotilla of cases before the High Court and Court of Appeal in recent years indicate that these features of an inquest are being lost in translation leading to "lengthy delays in the hearing of inquests, a substantial increase in their length with associated escalation in the cost of involvement in coronial proceedings”.

It commented that these were all undesirable features in the inquisitorial process.

The background

Ms Morahan was aged 34 when she died. She had a history of mental illness since the age of 24 and had been diagnosed with paranoid schizophrenia and cocaine use. She had been treated as an in-patient on several occasions and had been detained under the Mental Health Act before becoming a voluntary in-patient. During this time, Ms Morahan had gone AWOL from hospital and was later found dead at her home. The autopsy report concluded that she had died of cocaine and morphine toxicity. There was no evidence that she had intended to take her life.

The Morahan family invited the coroner to undertake an Article 2 inquest – the coroner refused, and the family sought judicial review. On judicial review, the Divisional Court found that there was no substantive Article 2 duty owed and therefore no duty to hold an Article 2 compliant inquest.

The Appeal

The Morahan family appealed the Divisional Court’s decision on three grounds:

  1. The Article 2 operational duty was arguably owed by the Trust.
  2. An automatic duty to hold an Article 2 compliant inquest arose on the facts.
  3. There was an arguable breach of the Article 2 substantive duty.

Ground 1: Article 2 operational duty was arguably owed by the Trust

The Court of Appeal considered the conclusions reached by the Divisional Court on whether the operational duty under Article 2 was owed to Ms Morahan as “unassailable”. It concluded that no operational duty was owed to Ms Morahan to protect her against the risk of accidental death by the recreational taking of illicit drugs. It determined that none of the factors identified in Rabone were fulfilled. The Appeal Court were willing to consider the fresh evidence notwithstanding its inadmissibility but did not support the proposition that at the time Ms Morahan failed to return to hospital she was at a real and immediate risk of death.

It said: 

The sad reality was that, as a long-term drug user, she was at risk, even high risk, of serious harm and accidental death at some stage if she reverted to using drugs. “Real and immediate risk” as a Strasbourg term of art is much more specific."

Ground 2: An automatic duty to hold an Article 2 compliant inquest arose on the facts

The Court of Appeal confirmed that there is no legal authority which decides that an Article 2 operational duty is owed to voluntary psychiatric patients to protect them from all risks of death.

It said that the risk of death in this sad case was:

“...accidental death from the recreational use of drugs of a voluntary patient who was genuinely at liberty to come and go. It is far removed from the circumstances in Rabone where the very purpose of being in hospital was to protect against the risk of suicide

Ground 3: There was an arguable breach of the Article 2 substantive duty

The Appeal Court held that this ground did not arise as they had concluded that an Article 2 operational duty did not exist.

If you’d like to discuss any of the issues raised here, do get in touch, we have a friendly and experienced national inquest team.

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